Opinion
05-04-2017
BUCHANAN CAPITAL MARKETS, LLC formerly known as Marcum Buchanan Associates, LLC, Plaintiff–Appellant, v. Joanne DeLUCCA, et al., Defendants, Michael Callahan, Defendant–Respondent.
The Roth Law Firm, PLLC, New York (Richard A. Roth of counsel), for appellant. Nixon Peabody LLP, Jericho (James W. Weller of counsel), for respondent.
The Roth Law Firm, PLLC, New York (Richard A. Roth of counsel), for appellant.
Nixon Peabody LLP, Jericho (James W. Weller of counsel), for respondent.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 29, 2016, which granted defendant Michael Callahan's motion to stay arbitration demanded by plaintiff pursuant to CPLR 7503 ©, unanimously affirmed, without costs. Defendant Callahan entered into an employment agreement with Marcum Buchanan Associates, LLC (Marcum), which contained noncompete and arbitration clauses, and which provided that Callahan's services "are special, unique and of extraordinary character" and that the parties had "a special confidential relationship." Such personal services contracts generally are not freely assignable (see Wien & Malkin LLP v. Helmsley–Spear, Inc., 6 N.Y.3d 471, 482, 813 N.Y.S.2d 691, 846 N.E.2d 1201 [2006], cert. dismissed 548 U.S. 940, 127 S.Ct. 34, 165 L.Ed.2d 1012 [2006] ; Eisner Computer Solutions v. Gluckstern, 293 A.D.2d 289, 741 N.Y.S.2d 511 [1st Dept.2002] ). While covenants not to compete in employment contracts may be assignable without the parties' consent (id. ), that depends on the parties' intent (see Archer Worldwide v. Mansbach, 289 A.D.2d 349, 734 N.Y.S.2d 869 [2d Dept.2001] ). Plaintiff Buchanan Capital Markets, LLC (Buchanan), as the proponent of arbitration, "has the burden of demonstrating that the parties agreed to arbitrate the dispute at issue" (Eiseman Levine Lehrhaupt & Kakoyiannis, P.C. v. Torino Jewelers, Ltd., 44 A.D.3d 581, 583, 844 N.Y.S.2d 242 [1st Dept.2007] ), and has failed to provide evidence that the parties intended Callahan's agreement with Marcum "to be assignable when it was originally executed" (Archer Worldwide, at 349, 734 N.Y.S.2d 869 ).
Moreover, the evidence does not support Buchanan's contention that there was no assignment, but merely a change of name after Vincent Buchanan purchased Marcum. Vincent Buchanan himself averred that there was an assignment of "assets, rights, and liabilities" from Marcum to Buchanan, and his affidavit fails to establish that Buchanan continued as the same company after the purchase.
RICHTER, J.P., ANDRIAS, MOSKOWITZ, FEINMAN, KAPNICK, JJ., concur.